In Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, the Supreme Court held a prevailing plaintiff in an antidiscrimination case " 'should ordinarily recover an attorney' fee unless special circumstances would render such an award unjust.' " However, it declined to use a similar standard in determining whether to award attorney fees to a prevailing defendant, because "there are at least two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant. First, . . . the plaintiff is the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority.' Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. . . . 'these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.' A successful defendant seeking counsel fees. . . must rely on quite different equitable considerations." It cautioned, however, "In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." The Christiansburg court concluded "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." In Cummings, the Court agreed and cautioned " 'such awards should be permitted "not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious." ' " In Cummings, the Court applied this standard and reversed the trial court's award of fees and costs to the prevailing defendant, on the ground the record did not reflect the trial court made the necessary findings concerning the merits of the appellant's discrimination claim. The Court noted the defendant's successful motion for summary judgment had been affirmed by a divided panel of Division Five of this district, and observed the split in the appellate panel clearly indicated "reasonable minds may differ as to the strength of appellant's case but that it would be unreasonable to conclude appellant's action for age discrimination was frivolous, unreasonable or without foundation where both the majority and the dissent found her claim to have some basis in fact. It therefore follows the trial court erred in presumably finding appellant's claim to be frivolous, unreasonable or without foundation and awarding attorney fees and costs to . . . the prevailing defendant." The statute, in its current form, provides: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." (42 U.S.C. 2000e-5(k).) The court reasoned: "That section 706(k) of Title VII allows fee awards only to prevailing private plaintiffs should assure that this statutory provision will not in itself operate as an incentive to the bringing of claims that have little chance of success. To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." (Id. at p. 422.) The United States Supreme Court identified the standard for awarding attorney fees to a prevailing defendant in an action under the Civil Rights Act of 1964. Christiansburg held that the equitable considerations favoring the award of attorney fees to prevailing plaintiffs in civil rights actions do not apply when the prevailing party is the defendant, because liability for such fees would undoubtedly diminish the willingness of plaintiffs of limited means to bring meritorious suits to vindicate a policy Congress considered of the greatest importance. (Christiansburg, at p. 418). Therefore, the court may award attorney fees to a defendant who prevails, "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even if not brought in subjective bad faith." (Id. at p. 421.)